UNITED STATES OF AMERICA v. FAUSTIN NSABUMUKUNZI (2026)

REPORT AND RECOMMENDATION

Presently before the Court is Defendant Faustin Nsabumukunzi's (“Defendant” or “Nsabumukunzi”) motion to compel the government to disclose the identities of its twelve anticipated trial witnesses in advance of defense counsel's currently planned trip to Rwanda in August 2026. See Electronic Case Filing (“ECF”) No. 35 (the “Motion to Compel” or “Mot. to Compel”). The government opposes the Motion to Compel. See ECF No. 41 (the “Opposition” or “Opp.”). Defendant filed a reply. See ECF No. 42 (the “Reply”).

Simultaneously with the Motion to Compel, Defendant filed a motion for discovery seeking a letter rogatory be issued to the authorities in Rwanda. See ECF No. 36 (the “Motion for Discovery”). The government also opposes the Motion for Discovery (ECF No. 40), and Defendant filed a reply. See ECF No. 43.

On April 14, 2026, Judge Joanna Seybert referred both motions to the undersigned for a Report and Recommendation. See April 14, 2026 Order. For the reasons set forth below, the undersigned recommends that (1) the Motion to Compel disclosure of the names of the government's trial witnesses be denied, and that (2) the Motion for Discovery regarding issuance of the letter rogatory be held in abeyance until Judge Seybert's forthcoming order either adopting or denying this Report and Recommendation.

I. BACKGROUND

On April 22, 2025, a grand jury in the Eastern District of New York returned an indictment charging Nsabumukunzi with three immigration-related offenses: visa fraud, in violation of 18 U.S.C. § 1546(a); attempted unlawful procurement of naturalization, in violation of 18 U.S.C. § 1425(a); and attempted procurement of naturalization when not entitled, in violation of 18 U.S.C. § 1425(b). See ECF No. 1 (the “Indictment”). According to the Indictment, Nsabumukunzi was born in Rwanda in 1960 and applied for refugee resettlement in the United States in 2003. Id. ¶¶ 8, 10. The charges arise from the Defendant's purported failure to disclose his alleged participation in the 1994 Rwandan genocide on his U.S. immigration applications submitted between 2003 and 2016. See id. ¶¶ 10-14; Opp. at 2. Over the span of several months in 1994, several hundred thousand people were “raped, mutilated and murdered” in ethnic-related violence in Rwanda. See id. ¶ 4.

The government intends to prove at trial that the Defendant allegedly participated in the genocide through eyewitness accounts of his conduct in Kibirizi — a small rural community in southern Rwanda where the alleged events occurred during an approximately two-month period beginning in April 1994. See id. ¶¶ 7, 9. At the time, Defendant served as the Sector Counselor of Kibirizi, a high-ranking local government official in the area. See id. ¶ 8. After immigrating to the U.S., Nsabumukunzi moved to Bridgehampton, New York. See Mot. to Compel at 8. He was arrested, arraigned, and released on bail on April 24, 2025. See Opp. at 2.

To date, the government has produced substantial discovery to Defendant. Pursuant to Federal Rule of Civil Procedure 16, the government produced various materials, including files received from the International Criminal Tribunal for Rwanda (“ICTR”); documents from the Republic of Rwanda pertaining to gacaca ¹ court proceedings against Nsabumukunzi; documents from Rwanda's National Public Prosecution Authority (“NRPA”) proceedings against Nsabumukunzi; approximately 90 photographs; and more than 1,000 pages of general background materials on the Rwandan genocide. See Opp. at 2–3. The government also conducted a reverse proffer with Defendant's counsel in December 2025, in which it identified key evidence and testimony underlying the charged conduct, and voluntarily made available for defense counsel's review approximately 98 pages of witness statements and related materials at the United States Attorney's Office. See id. at 3.

On April 10, 2026, Defendant filed the Motion to Compel seeking disclosure of trial witness identities at least 60 days before any planned travel to Rwanda, on an attorneys’ eyes-only basis. See ECF No. 35 at 1. Defendant also filed the Motion for Discovery that same day, seeking a letter rogatory to be transmitted to the Rwandan Ministry of National Unity & Civic Engagement for the production of gacaca information-gathering records for the relevant geographic region. See ECF No. 36 at 1. Judge Seybert later referred both motions to the undersigned for a Report and Recommendation. See April 14, 2026 Order.

In response to the Judge Seybert's instruction, the government advised Defendant on March 4, 2026 that the anticipated composition of its trial witness included approximately 10 witnesses reside in Rwanda, one witness resides in Kenya, and one witness resides in the United States. See id. The government has represented that it will disclose the names of its trial witnesses and material pursuant to 18 U.S.C.§ 3500 two weeks before the trial (which is currently scheduled for December 7, 2026). See ECF Nos. 37, 41 at 4. In a supplemental filing on May 18, 2026, the government informed the Court that the names of seven of their trial witnesses are included in the discovery already produced to Defendant. See ECF No. 45. Defendant also clarified with the Court that his request for the government's trial witness names on an attorneys’ eyes-only basis includes the anticipated witnesses living in Rwanda, as well as the two witnesses living in Kenya and the United States, respectively. See ECF No. 44.

II. LEGAL STANDARD

There is no constitutional provision or federal rule that requires the government to disclose lay witness identities pretrial. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably.”); United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990) (“Fed. R. Crim. P. 16 does not require the Government to furnish the names and addresses of its witnesses in general.”); United States v. Alessi, 638 F.2d 466, 481 (2d Cir. 1980) (“The prosecution [is] under no obligation to give [a defendant] advance warning of the witnesses who [will] testify against him.”); United States v. Lorenzano, No. S6 03 CR. 1256, 2005 WL 975980, at *4 (S.D.N.Y. Apr. 26, 2005) (finding that the government is not required to “produce the names of any witnesses or a trial witness list this far in advance of trial in the absence of any particularized showing of need by the defense”) (citing United States v. Yu, No. 94 Cr. 375, 1994 WL 414352, at *2 (S.D.N.Y. Aug. 8, 1994)).

However, “district courts have authority to compel pretrial disclosure of the identity of government witnesses.” United States v. Cannone, 528 F.2d 296, 300 (2d Cir. 1975). That discretion is reviewed for abuse. See id. In deciding whether to require disclosure of the government's witness list before trial, courts consider whether the defendant has made “a specific showing that [it is] both material to the preparation of the defense and reasonable in light of the circumstances.” United States v. Bejasa, 904 F.2d 137, 139–40 (2d Cir. 1990). The Second Circuit has made clear that “when a defendant offers only conclusory abstract statements as to why disclosure of the identity of the government's witnesses is necessary, and when the government counters with specific factual allegations as to why disclosure would be prejudicial, it is error for the trial court to grant disclosure unless the defendant has come forth with a specific factual response.” United States v. James, No. 02 CR 0778 (SJ), 2007 WL 914242, at *13 (E.D.N.Y. Mar. 21, 2007).

III. DISCUSSION

For the reasons set forth below, the undersigned finds that the Defendant has not satisfied the Second Circuit's Cannone standard and that the government's documented safety concerns warrant denial of the Motion to Compel disclosure of the names of its trial witnesses. The undersigned defers a holding on the Motion for Discovery, as the requested issuance of the letters rogatory overlaps with issues to be resolved when Judge Seybert either adopts or rejects the findings of this Report and Recommendation.

A. There is No Basis to Disclose the Government's Witness List Months Before Trial

a. This Is a Violent Crimes Case in Which Witness List Disclosure Is Generally Denied

First and foremost, the underlying facts of this case stem from the atrocities committed during the Rwandan genocide. Although the indictment charges Defendant with immigration-related fraud crimes, the government's proof at trial will consist almost entirely of eyewitness accounts of the Rwanda genocide and the Defendant's alleged involvement therein.

Courts in this Circuit “are especially reluctant to require the disclosure of witness lists in cases that involve allegations of crimes of violence.” United States v. Remire, 400 F. Supp. 2d 627, 633 (S.D.N.Y. 2005) (citing United States v. Lorenzano, No. S6 03 CR. 1256 (JFK), 2005 WL 975980, at *4 (S.D.N.Y. 2005) (denying defendant's request for the names of witnesses out of concern for witness safety, given the violent nature of the alleged offense)); United States v. Perez, No. 23-CR-99 (LJL), 2025 WL 41612, at *6 (S.D.N.Y. Jan. 7, 2025) (denying defendant's request for witness list in advance of one week before trial due to the violent nature of the alleged crime). The anticipated witnesses here are expected to testify about Defendant's alleged involvement in the Rwanda genocide. This case falls squarely within the category of violent crimes in which courts of this Circuit disfavor early witness list disclosure.

b. The Government Has Made the Specific, Documented Safety Showing That Cannone Requires

Cannone requires the government to present “specific showing of need for concealment” of witness names when challenged by a specific showing of need for disclosure by the defendant. 528 F.2d at 302. In compliance with that standard, the government's Opposition to the Motion to Compel goes beyond vague, boilerplate concerns of witness safety. See United States v. Nachamie, 91 F. Supp. 2d 565, 579–80 (S.D.N.Y. 2000) (“But vague assertions of the potential vulnerability of some witnesses do not constitute a “realistic possibility” that providing a witness list will lead to witness intimidation.”). According to the government, actual witnesses have already expressed personal safety fears and described concern about contact from the defendant because of the horrors they experienced. See Opp. at 7 (“Witnesses expressed fear for personal safety and concerns about testifying.”). These fears are not hypothetical — they have already been voiced to the government by interviewees during their investigations. See id. Should the witness list be released, defense counsel's investigation would be taking place in the same country in which the genocide occurred, creating conditions for potential intimidation in Rwanda beyond the reach of this Court. See id. at 7.

Moreover, although Defendant attempts to minimize his governmental position (see Reply at 4), it is undisputed that the Defendant served as a high-ranking local government official in Kibirizi — a community of approximately 6,000 to 7,000 residents — at the time of the genocide. See Opp. at 10. The government persuasively argues that this positional authority distinguishes him from other Rwandan defendants in other U.S. criminal proceedings cited by the Defendant in support of his Motion. See Opp. at 10; see supra at 9.

Finally, participants in the Rwanda genocide in 1994 now live alongside survivors of those atrocities in the very communities where the killings occurred. Whether Defendant has control over these actors or not, the geographic overlap has the potential to create conditions for informal intimidation well beyond the reach of this Court. See id. at 7; see James, 2005 WL 8161681, at *5-6 (holding that disclosure of the names of witnesses in Guyana was not warranted where defendant was charged with a violent crime).

Taken together, the undersigned finds that the government has satisfied Cannone's requirement of specific evidence of the need for concealment. See Cannone, 528 F.2d at 301–02.

c. Defendant Has Not Met His Burden Under Cannone to Overcome the Need for Concealment

Having established that the government has made a specific factual showing of the need for concealment, the Court turns to whether the Defendant has countered with a specific factual response of the need for disclosure. See id., 528 F.2d at 302. The undersigned concludes that Defendant has not met that burden.

i. The Defendant Has the Material Necessary for Focused Investigative Efforts

A generalized desire to investigate the credibility of anticipated witnesses is present in virtually every criminal case and cannot, without more, override specific, documented evidence of witness safety concerns of the magnitude present here. See United States v. Reyes, 417 F. Supp. 2d 257, 261 (S.D.N.Y. 2005) (denying witness list where defendant sought opportunity to interview informants and co-conspirators before trial); see Remire, 400 F. Supp. 2d at 632 (“The burden is on the defendants to make some particularized showing of need, beyond the obvious assertion that such a list would facilitate preparation for trial.”).

Defendant argues that, “[i]f witness names are not disclosed before that trip is planned and executed, the trip cannot be used to investigate the government's witnesses.” Mot. to Compel at 5. The Court is not persuaded by this argument, particularly considering the government's latest submission indicating that seven of the ten witnesses located in Rwanda are among the names already disclosed through discovery to Defendant. See ECF No. 45. In fact, identifying by name which subset of the already disclosed witnesses carries its own distinct risk by signaling to potential bad actors in Rwanda precisely which witnesses are most actively engaged with this prosecution. Defendant's desire to narrow the scope of the investigation before defense counsel's trip occurs is not unlike any defendant's general eagerness to efficiently investigate their case. However, defense counsel has more than ample materials necessary to paint a fulsome picture of the relevant actors while in Rwanda consistent with the government's obligations under Rule 16.

In James, the defendant raised similar arguments to those presented here. Because the relevant trial witnesses in James were likely located in Guyana, defendant argued that “it [would] be more difficult to conduct a thorough investigation of the background of these witnesses.” 2005 WL 8161681, at *5. However, the court there, too, was unpersuaded and denied James’ request for the identity of witnesses in advance of trial. See id.

Defendant also argues through his supplemental filing that his request for witness names extends to the two witnesses located in the United States and Kenya, respectively, because “[a]ll twelve are alleged to have observed conduct in Kibirizi in 1994, and all twelve must be investigated on a single planned trip to Rwanda.” ECF No. 44 at 1. Defendant proceeds to argue that investigation of these precise witnesses is necessary in advance because “[i]nconsistencies between prior and anticipated testimony are core impeachment material.” Reply at 8. But courts have held that “the need for evidence to impeach witnesses is insufficient to require its production in advance of trial.” United States v. Lopez, No. 15CR252S3PKC, 2022 WL 1137095, at *2 (E.D.N.Y. Apr. 16, 2022). The Court again is not persuaded that Defendant does not have what he needs already to conduct an adequate investigation of all witnesses, either in Rwanda, the United States, or Kenya, through the government's ample discovery, and through the typical investigation conducted when preparing for trial. See United States v. Pastor, 419 F.Supp. 1318, 1330 (S.D.N.Y.1976) (“The burden is on the defendants to make some particularized showing of need, beyond the obvious assertion that such a list would facilitate preparation for trial.”); see also United States v. Jones, No. 19-CR-54 (NGG), 2024 WL 1704756, at *4 (E.D.N.Y. Apr. 19, 2024) (denying witness disclosure where defense had adequate opportunity to prepare its case.)

Finally, the defendant's proposed timeline — disclosure sixty before any defense trip to Rwanda — is untethered from a fixed calendar date, effectively vesting in defense counsel the unilateral ability to trigger disclosure at will by scheduling travel to Rwanda. The Cannone analysis does not require the government to disclose at the time most convenient for the defense; it requires the defendant to demonstrate that existing discovery falls substantially short of what is necessary for preparation and outweighs witness safety concerns shown by the government. See Jones, 2024 WL 1704756, at *4 (denying disclosure of government's witness list months before the scheduled trial). That Court finds that Defendant has not made that showing here.

ii. The Defendant's Cases Do Not Overcome the Government's Showing

Defendant argues that “[i]n six materially identical Rwandan genocide visa fraud prosecutions, the Department of Justice voluntarily disclosed witness identities well in advance of defense investigative travel to Rwanda, and in none of those cases did disclosure result in tampering.” Reply at 1. But Cannone requires a case-specific inquiry. Each of those prior cases involved a defendant with a materially different and less senior position than Defendant's alleged role as a senior local governmental official authority in his province in Rwanda. See Opp. at 10.

Defendant also relies heavily on United States v. Nachamie, 91 F. Supp. 2d 565, 579 (S.D.N.Y. 2000), as endorsing earlier disclosure, but the Court is not persuaded by reliance on that case. First of all, in Nachamie, the court ordered precisely what the government has offered to do here: disclosure of the witness list two weeks before trial. See 91 F. Supp. 2d at 580. Indeed, Nachamie involved elderly Medicare patient-witnesses in a white collar fraud prosecution, presenting witness safety concerns obviously different from potential intimidation that could arise here from disclosure of witness names in a case involving allegations regarding Defendant's purported participation in the Rwanda genocide.

Defendant also argues that the trial witness names should be revealed in his case because the Department of Justice has disclosed witness names in similar Rwanda-related cases since 2022, the year in which an investigator who had previously worked with U.S. defense counsel, Dick Prudence Munyeshuli, was convicted of contempt by a United Nations appellate chamber for witness tampering in connection with Rwandan genocide trials. See Fatuma et al., MICT-18-116 (June 29, 2022);² United States v. Gasana, No. 20-cr-16 (D.N.H.), Dkt. 31 (Joint Request for Scheduling Order) (wherein the government agreed to produce unredacted witness information more than seven months before trial); United States v. Nshimiye, 24-cr-10071 (D. Mass.) (in which witness names were disclosed prior to defense travel to Rwanda)., However, the government's approach in the Gasana and Nshimiye cases do not bind this Court or the Department of Justice, and the government is permitted to take a more cautious approach based on the factual circumstances of this case. See United States v. Armstrong, 517 U.S. 456, 464 (1996) (the Attorney General and United States Attorneys retain “broad discretion” to enforce the Nation's criminal laws) (quoting Wayte v. United States, 470 U.S. 598, 607 (1985)). Moreover, despite the timing of the Munyeshuli proceedings relative to these other cases, the underlying conduct involved the improper disclosure of information about witnesses in connection with Rwandan genocide trials, which is clearly relevant context for the risk of disclosing witness names as requested here. Defendant argues that this does not meet Cannone’s specificity standard, but in light of the specific factual circumstances here of Defendant's position of local government authority in Rwanda during the genocide, the Court finds that the government has met their burden under Cannone.

Next, Defendant asserts that “the generalized tampering matters the government cites all involve private Rwandan residents paying other local residents to change their testimony in international tribunals” which would be avoided here, as he only requests witness names disclosed on an attorneys’ eye's only basis. See Reply at 6 (citing Opp. at 8). But the designation of the disclosure has no bearing on private Rwandan residents taking that same opportunity once they are able to observe the defense team's narrowed investigation of only twelve people in a small community in Rwanda.

Defendant finally argues that his pretrial compliance, his three decades of absence from Rwanda, and the government's failure to produce any evidence that he has attempted to contact or influence any witness all demonstrate that the government's safety concerns are untethered to any realistic risk. See Reply at 5–6. The Court does not discount the Defendant's record of compliance in the U.S., but this does not counterbalance the risk that flows from individuals in Rwanda over whom defense counsel cannot exercise control, and over whom this Court has no enforcement jurisdiction. Therefore, Defendant's personal conduct since arriving in the United States does not extinguish the broader risk inherent in an investigation involving genocide actors and victims.

B. The Court Holds Defendant's Motion for Discovery in Abeyance

As Defendant concedes in his reply to the Motion for Discovery regarding his request for issuance of letters rogatory directed to the authorities in Rwanda:

The only potentially valid criticism of our request for prior witness statements is that it is insufficiently specific because we have not identified the witnesses whose statements we seek. But as the Court knows from our April 10, 2026 motion to compel, see ECF No. 35, we do not know the identity of the government's witnesses. We cannot supply the names for the letter rogatory today—only the government can.

ECF No. 43 at 2 (emphasis added). The question of potential disclosure of the names of the government's trial witnesses is thus inextricably linked with the scope of the requested letters rogatory. Therefore, the Court holds in abeyance Defendant's Motion for Discovery for the letters rogatory pending the adoption or rejection of this Report and Recommendation by Judge Seybert.

IV. CONCLUSION

For the foregoing reasons, the undersigned recommends that Defendant's Motion to Compel disclosure of the names of the government's trial witness (ECF No. 35) be denied. The undersigned also holds in abeyance Defendant's Motion for Discovery seeking issuance of letters rogatory (ECF No. 36) pending Judge Seybert's adoption or rejection of this Report and Recommendation.

V. OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2), the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any request for extension of time for filing objections must be directed to Judge Seybert. FAILURE TO FILE TIMELY OBJECTIONS SHALL CONSTITUTE A WAIVER OF THOSE OBJECTIONS BOTH IN THE DISTRICT COURT AND LATER APPEAL TO THE UNITED STATES COURT OF APPEALS. See Thomas v. Arn, 474 U.S. 140, 154–55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir. 2018); McConnell v. ABC-Amega, Inc., 338 F. App'x 24, 26 (2d Cir. 2009); F.D.I.C. v. Hillcrest Assocs., 66 F.3D 566, 569 (2d Cir. 1995).

SO ORDERED:

FOOTNOTES

1.   “The gacaca courts were a system of citizen-run tribunals set up at the local level and empowered to investigate and adjudicate the large volume of criminal cases resulting from the genocide.” Opp. at 3.

2.   https://ucr.irmct.org/LegalRef/CMSDocStore/Public/English/Judgement/NotIndexable/MICT18-116-A/JUD293R0000659234.pdf.

LEE G. DUNST United States Magistrate Judge